American history shows that reliance on courts as engines of liberal reform is problematic both in terms of norms and strategy. Israel should take note.
Israel was born without a constitution and long resisted judicial supremacy. For decades, its legal system reflected the British parliamentary tradition, in which courts interpreted statutes but did not claim authority to override the political branches. Only in recent decades did Israel begin to emulate the American model of constitutionalized judicial power. This turn, championed largely by liberals, is likely to prove a grave mistake. American history shows that reliance on courts as engines of liberal reform is both normatively troubling and strategically self-defeating. The American past, in this sense, is a warning about Israel’s future.
Judicial supremacy was not inevitable in the United States. Unlike Israel, the United States adopted a written constitution at its founding, but that document did not clearly assign courts the final word when it came to interpreting it. Even Marbury v. Madison (the 1803 landmark case that established the principal of judicial review) did not inaugurate a regime of unchecked judicial power, and for much of the 19th century courts exercised restraint. It was only after Reconstruction, when Congress retreated from democratic transformation in the South, that judges began asserting sweeping authority – often to entrench laissez-faire economics and block social reform.
A 50-year mobilization against this phenomenon kicked off, culminating in Franklin Roosevelt’s New Deal revolution against the Supreme Court’s obstructionism. Reformers focused not just on the invalidation of statute by judges, but also aggressive statutory interpretation that allowed judges to impose their own preferences. Judges “battered their way to supremacy with their double axes,” one reformer and judge himself, Learned Hand, explained. “One edge is the control over legislation by its unconstitutionality, the other is such free interpretation of statutes as suits their purposes.” Ultimately, after a long struggle, the judges were beaten. The experience showed that managing political change legally rather than politically is doomed to fail. Long after World War II, liberals like Associate Supreme Court Justice Felix Frankfurter remained anxious that judges could never serve as the emissaries of liberalism, certainly not as a substitute for political victory.
Nor was the U.S. constitutional model influential globally until long into the 20th century, except among conservatives upset about the coming of a new kind of democracy grounded on universal suffrage, and eager to explore how to avoid its consequences. No wonder that parliamentary sovereignty without checks appealed far more for so long on a global scale, notably in the postcolonial states born after World War II — including, of course, in Israel for many decades. That changed.
The reason, paradoxically, was that liberals in the United States adopted antidemocratic techniques to lay the groundwork of a liberal and egalitarian society in the context of race relations. For a time, their tactics looked both successful and transformative. Those who protested not the ends but the means of advancing liberal values, such as Frankfurter, came to be seen as conservative rather than progressive. In retrospect, the strategy failed. The Warren Court – the U.S. Supreme Court of the 1950s and 1960s, led by Chief Justice Earl Warren – achieved iconic victories, but its accomplishments proved fragile. Desegregation stalled without political support, and reliance on courts generated backlash that fueled a long conservative campaign to capture the judiciary. By the time liberals secured landmark rulings on abortion and gay rights in the succeeding decades, the Supreme Court was already drifting rightward.
Liberals were slow to reckon with the consequences of their own strategy. Having encouraged judicial supremacy, they found themselves powerless when their opponents mastered the same tools. Now it is widely agreed that they made a profound mistake and some wish they could take it back. Liberal lion Laurence Tribe, a longtime Harvard law professor once known for his esteem for the court, wrote in 2023 that “The era of the Warren Court was the exception rather than the norm.” Americans, he wrote, must give up “an outdated conception of the Court until recently held by many” and “misplaced … reverence.”
Israel imported this model at precisely the wrong moment. Beginning in the 1990s, under Chief Justice Aharon Barak, the Israeli Supreme Court embraced a theory of judicial authority explicitly inspired by American constitutional practice. Its Supreme Court now wields powers exceeding even those of its American counterpart: striking down legislation based on vague principles, neutralizing laws through aggressive interpretation, invalidating executive decisions for “unreasonableness,” and supervising routine governance. The court also controls its own composition, suppresses dissent within the judiciary and has transformed the attorney general into a quasi-supervisory authority over elected officials. Together, these doctrines have produced an extraordinary concentration of unelected power.
This system rests on a fiction familiar from American debates: that judges stand above politics and merely apply neutral legal principles. They do not. Judges are not moral or policy experts, and empirical evidence confirms that their decisions track ideological commitments. Judicial reasoning often rationalizes preferred outcomes rather than neutrally discovering law. The most damaging feature of judicialized liberalism is not that courts make political decisions. It is that liberals insist – against all evidence – that they are not doing politics at all. They claim that the law itself already commands the outcomes they favor, and that judges merely “discover” these mandates through neutral interpretation. This pretense may reassure allies, but it convinces no opponents.
Political adversaries understand perfectly well what is happening. They see courts being used to entrench substantive moral and social commitments that failed to win democratic endorsement. They therefore respond not with legal argument, but with political counter-mobilization – aimed above all at capturing the judiciary itself. In this way, the denial that judging is political does not depoliticize conflict; it intensifies it, while shifting it into institutions ill-suited to contain it. Courts come to be viewed not as arbiters, but as instruments – venues for continuing political struggle by other means. Every appointment becomes a high-stakes ideological battle; every procedural rule a potential weapon. This happened in the United States and it is now happening in Israel. Worse still, judicial power acquired in the name of liberalism does not remain liberal for long. Once courts are openly understood as political prizes, there is no reason to expect they will remain in friendly hands. American liberals learned this lesson painfully when decades of reliance on judicial power culminated in a Supreme Court dominated by their ideological opponents – who then used the very tools liberals had legitimized to dismantle liberal achievements.
Judicialization was a choice, not a destiny. In both the United States and Israel, the era since the 1970s has seen the rise of the right, roughly marked by the electoral victories of Menachem Begin and Ronald Reagan. It was natural to experience depression about the prospect of regaining the prior near-hegemonic majorities associated with the Labor and Democratic parties that came near to making both Israel and the United States one-party states over several decades. The appeal was understandable – but the long-term costs were severe.
Courts can block legislation, but they cannot build coalitions or legitimacy. Liberalism advanced through judges narrows its ambitions and provokes counter-mobilization. Over time, it transforms from a governing vision into a defensive posture defined by fear of democracy. American history offers a different lesson. At key moments – Reconstruction and the New Deal – liberal elites ultimately chose democratic contestation over judicial insulation. The risks were real, but the alternative was worse. Democratic politics, not courts, produced durable liberal achievements.
Israeli liberals are not condemned to repeat the American mistake. Democratic politics remains open-ended: Coalitions can be rebuilt, arguments renewed, defeats reversed. Liberalism does not fail when it loses elections; it fails when it abandons the effort to win them.
The path forward runs not through courts, but through voters – and it is still available.